The appeals against the judgment of the District Court were filed before us.
Summary of the parties' arguments
- According to the woman, given that it has been determined that no intention to share in relation to the land has been proven in our case, recognition of a specific intention to share the appreciation of the land requires a distinction between "active praise", which is attributed to the investment of one of the spouses, and "passive praise", which is attributed to circumstances external to them. The woman emphasizes that the value of the active appreciation should be balanced between the parties only, within the framework of the balance of resources under the Property Relations Law, since the right to the appreciation is necessarily monetary and not proprietary; and that the apartments should be left in its sole ownership. The wife adds that since the apartments are not the parties' residence, there was no reason to determine in our case an intention to share their case. The woman further argues that it is not clear that the specific partnership rule applies to assets other than the family home, in view of the contradiction that exists, according to her, between this rule and the provisions of the Property Relations Law; And even assuming that the aforementioned rule applies to properties that are not of a family nature, in order for it to be applied as aforesaid, a very high evidentiary standard is required, of a written undertaking or of one given to witnesses.
- On the other hand, the man argues that the specific sharing rule establishes proprietary, equal and immediate sharing; Therefore, and even taking into account the provisions of the Land Law, 5729-1969, it is not possible to reach the conclusion that the value of the land was excluded from his ownership of the apartments. It was argued that the dominant approach in case law examines the specific partnership in terms of the intentions of the parties; that considerations of justice cannot replace the intention of the parties in the issue at hand; and that in our case, the couple expressed in words and behavior the perception that the apartments and the land are one piece that cannot be separated. The man emphasizes that just as it is not possible to determine a specific partnership when the parties did not intend to create a partnership in the property, so too it is not possible to create a "weakened partnership" or "partial" for reasons of justice, when the parties' intention was to create a full partnership. The man adds, inter alia, that in any event, there was no room to deduct from his rights in the apartments an amount equal to the value of the land of the five apartments, but only two and a half, given that the rights in the five apartments are divided equally between him and the woman.
Discussion and Decision
- I will preface by saying that I am of the opinion that the determinations in our case, in the framework of which the land was excluded as aforesaid from the areas of sharing in apartments, are inconsistent with the essence of the specific partnership rule, as it developed in the case law of this Court; In light of the above, the man's appeal is to be accepted, and the woman's appeal to be rejected.
- Our course of action will be as follows: I will first discuss the background to the growth of the specific partnership rule, and later I will show that this rule developed in case law mainly on the basis of the construction of an agreement that is learned from the couple's conduct. Afterwards, I will clarify that the establishment of this rule on the basis of such an agreement is based on general law, and in the process is consistent with the law relating to a number of legislative provisions that include a written requirement. I will further clarify that given the aforementioned construction, the specific partnership rule is concerned, as a rule, with the sharing of rights Egalitarian Between spouses. In view of all this, I will show that in the present case, the exclusion of the land from the boundaries of sharing in apartments is inconsistent with the essence of the rule in question. Finally, I will address the woman's arguments regarding the relationship between the specific partnership rule and the balance of "active praise" within the framework of the law; and the possibility of applying this rule to properties other than the family residential apartment.
The Birth of the Specific Partnership Rule - Against the Background of the Presumption of Partnership, the Property Relations Law and the Relationship Between Them
- The specific partnership rule arose against the background of the arrangements that preceded it regarding the division of property between spouses - the presumption of partnership and the Property Relations Law. Understanding the essence of the halakha in question therefore involves characterizing the main points of these arrangements and the relationship between them, and I will do so in the following lines.
- The presumption of partnership - which is also called the "partnership rule", as opposed to the "specific partnership rule" - has developed in case law since the 1960s, on the basis of the special characteristics of spousal relationships (see, for example: Civil Appeal 300/64 Berger v. Estate Tax AdministratorIsrSC 19(2) 240 (1965); Civil Appeal 253/65 Bricker v. BrickerIsrSC 20(1) 589 (1966); On appeal Taxes 1983/23 Anonymous vs. Anonymous, Verse 19 (August 10, 2023) (hereinafter: On appeal Taxes 1983/23); On appeal Taxes 1270/23 Anonymous vs. Anonymous, Verse 15 (September 6, 2023) (hereinafter: On appeal Taxes 1270/23); Shahar Lifshitz The marital partnership 116 (2016) (hereinafter: Lifshitz, the marital partnership)). Essentially, the presumption of partnership states that a spouse who lives together and maintains a joint household has a presumption that the property accumulated during their life together belongs to both of them, in equal shares, unless it is proven that their intention was different (see, for example: High Court of Justice 111/92 Bavli v. The Great Rabbinical Court, IsrSC 48(2) 221, 252 (1994)). However, According to the presumption of partnership, even property that was not fully accumulated during the course of the joint life may, in certain circumstances, be considered joint property of the spouses, in view of the perception that "The presumption of sharing is an expression of the interpersonal lifestyle that is created according to our perceptions in the relationship between spouses who maintain a joint household and combine their efforts into a unified system [...] Over the years, the boundaries of separation disappear, and the assets - whatever their origin - become "one flesh"" (Civil Appeal 806/93 Hadari v. Hadari, IsrSC 48(3) 685, para. 6 of the President's judgment M. Shamgar (1994)).
It is worth noting that at the beginning of the partnership, the presumption of partnership was attributed a "contractual rationale", according to which a presumption is imposed on spouses who chose to live together and maintain a joint household that they are Mean to divide their property between them in an equal manner (see, for example: Ariel Rosen-Zvi Prenuptial Relations between Spouses 249-252 (1983); Civil Appeal 1915/91 Jacobi v. Jacobi, IsrSC 49(3) 529, para. 3 of the judge's judgment T. Strasberg-Cohen (1995) (hereinafter: the Case Jacobi)). However, over the years, it has been determined that the presumption of partnership rests mainly on the rationale of "joint effort", which is based on a normative-value-based view, according to which spouses contribute to the welfare of the family in an equal manner, so that it is justified to apply a regime of equal participation to their property (see, for example: in the appeal Taxes 1983/23, para. 21 and references therein; Civil Appeal 7750/10 Ben Giat v. Hachsharat HaYishuv Insurance Ltd., paragraph 27 of the judge's judgment Y. Amit (11.8.2011) (hereinafter: the Matter Ben Giat); On appeal Taxes 4623/04 Anonymous vs. Anonymous, paragraph 10 of the judgment of the Vice-President A. Rivlin (26.8.2007); Lifshitz, pp. 117-135).